The Americans have mocked India's judicial system
'Evacuating' Devyani's maid's family from India on T visas -- associated with severe sex or labour trafficking... The maximum number of persons thus evacuated by the US from foreign countries last year was from India.'
'A thorough investigation of this is required at India's end,' says former foreign secretary Kanwal Sibal, 'with the US warned that such interference in India's judicial system will not be tolerated.'
India's then deputy consul general in New York, Devyani Khobragade, was indicted by a grand jury for her so-called crime of visa fraud and underpayment of wages to her maid, given full diplomatic immunity by the State Department upon her transfer to India's United Nations mission, and expelled from the United States.
It brings to a tangled closure an episode that has badly fouled up the atmosphere of US-India relations.
Some may argue that this was the only viable compromise that could be forged, given the determination of the US side to punish her, its procrastination in finding an early way out and in the process allowing public antagonism towards the US in India to grow, and the matching determination on the Indian side not to permit the US to get away with this deliberate affront to India's dignity and its sovereignty.
The US has, it can be argued, upheld its labour laws, made the point that foreign diplomats violating them are liable for legal action, but has been forced to end the impasse with India by granting Dr Khobragade full diplomatic immunity upon being accredited to India's UN mission as enjoined by its headquarters agreement with the UN.
The solution found has, however, left many loose ends and many questions unanswered.
To understand why this incident occurred, it needs recalling that already it was being bemoaned in expert circles on both sides that the relationship had lost its momentum and was not living up to its promise.
India, it was being said, was not in focus in the White House anymore, and in the State Department pro-India hands that were nurturing the relationship were no longer in position.
The recent Congressional campaign by the US corporate sector against India's tax, patent and market-access related policies have rattled the Indian side, not to mention the tightening of the visa regime for Indian information technology professionals.
This explains in part the cavalier way in which the US treated Dr Khobragade and the strong Indian reaction.
The inherent inequalities in US-India bilateral relations have been exposed by this incident. The US constantly judges others politically and morally by the yardstick of its supposedly loftier values -- an exercise seen as self-serving and hypocritical by those at the receiving end.
Indian feelings have been exacerbated all the more over this incident because the US has sought to provide the protection of its supposedly superior laws to exploited foreign nationals and has dismissed the infliction of personal indignities such as strip-searching a foreign woman diplomat as 'standard operating procedure'.
Since the US freely pronounces on the legitimacy of laws of foreign countries, it is time others summoned the US to get rid of its 'standard operating procedures' that offend human dignity.
It is now apparent that the State Department in collusion with the US embassy in New Delhi were primarily responsible for the arrest of India's diplomat. Even more serious in some ways than her arrest is the manner in which the Americans have mocked India's judicial system by 'evacuating' the maid's family from India on T visas -- associated with severe sex or labour trafficking.
It would seem that the maximum number of persons evacuated by the US from foreign countries last year was from India -- one-third out of a total of 151.
It is astonishing that India's government has been unaware of this egregious conduct by the US government and its missions in India.
A thorough investigation of this is required at India's end, with the US warned that such interference in India's judicial system will not be tolerated and those in its missions involved in the issuance of such visas will open themselves to legal action.
Our immigration authorities should be ordered to prevent any Indian leaving the country on a T visa by declaring such visas illegal.
US authorities, its media and some Indian Americans are finding excuses for the crass manner in which India's diplomat in the US has been treated.
US labour laws have been arbitrarily extended to the domestic staff of foreign diplomats travelling on official passports, in violation of the Vienna Convention on Consular Relations.
The decision to exclude housing, food, clothing, travel, medical expenses from the package offered to such domestic staff is misconceived.
The US is getting away with this because of its superpower status. Those belabouring errant Indian diplomats for flouting US laws should keep this in view.
Ironically, for all of its posturing, the US ignores the reality that its diplomats in India pay 'slave' wages to their local domestic staff, not to mention the pittance they give as salaries to the local staff employed in their missions.
Which is why the US embassy is dragging its feet in giving information to the ministry of external affairs on wages and salaries being paid to Indians in its employment.
The argument that the US is not violating local laws by not paying them minimum US wages is morally hollow, as it implies that they can exploit foreign labour in disregard of their own minimum standards, but will take punitive legal action even against foreign nationals in the US who employ their own nationals as domestic staff at wages much higher than normal Indian standards.
To then deflect attention from Devyani's case by bringing in issues of social inequalities in India, the addiction of the Indian middle class to domestic servants and their frequent maltreatment, is to suggest that there is perfect equality in the US and that the Americans have such a superior sense of human dignity that they do not employ maids even when they can afford them. And that all cases of underpayment result in strip-searches by US marshals.
The US is also trying to obfuscate the enormity of what it has done to the Indian diplomat by trying to shift the focus to India's decision to withdraw the security barriers 'surrounding' the US embassy, which is a canard because a public road that had been taken over by the US embassy and incorporated into its compound to make it comfortable for its personnel to access the embassy club has been re-opened to traffic, but with security barriers alongside the embassy's walls and police presence still in place.
The security barriers along nine other embassy compound walls remain and traffic on nine roads adjoining the embassy walls has never been stopped.
These facts are being conveniently overlooked in the propaganda being disseminated by US authorities. The decision not to allow the embassy to continue misusing its diplomatic privileges in various ways is being termed as 'petty' unbecoming of a democracy and a would-be great power.
Such patronising and condescending editorials in the US mainstream press show how self-centred, narrow-minded and insular Americans can be, even those with a window on the world.
It is, of course, not petty for the US to magnify a minor wage dispute into a huge visa fraud issue, to agree to deport the maid at one stage in writing and then inexplicably change its mind because someone wanted to teach Indian diplomats a lesson and to ignore the judicial process against the maid in India.
The US has, of course, been above the kind of pettiness India has shown, in disregarding the fact that Dr Khobragade, seconded as an adviser to our UN delegation, enjoyed full diplomatic immunity, to keep the Indian government in the dark about its intentions towards her, to spirit away the maid's family two days before the arrest, to be unwilling to acknowledge that handcuffing and strip-searching a foreign woman diplomat is unacceptable, and, for the edification of outraged Indians, to differentiate between a visual examination of her cavities and digital insertion in them, as if the choice of the former is notably large-hearted.
By the same token, Secretary John Kerry has shown remarkable generosity in expressing regret over the incident, or the 'circumstances' of the incident as the US ambassador to India has said. In other words, the deputy consul general regrettably created the issue which forced the US to react against its better judgment.
The statement of the US ambassador was also inept, as it implied that the incident should be set aside and the two countries should now carry on business as usual. In other words, minimising the gravity of the incident.
Of course, all sensible persons would agree that this incident should not damage the bilateral relationship beyond all proportions.
India and the US are engaged in numerous dialogues on key strategic, geopolitical, defense, technology, economic, energy, educational and other issues.
The agenda is far-reaching. Yet, on this sensitive issue the dialogue between the two countries has dragged on unreasonably.
It is necessary to have a bilateral agreement on immunities for diplomats of the two countries working in consulates. The status of domestic staff accompanying our diplomats has to be clearly defined through a bilateral agreement.
Diplomatic ties must be restructured on the basis of strict reciprocity.
By being petty-minded on a minor legal issue, the US has neither conducted itself as a great power nor as India's strategic partner.
Kanwal Sibal is a former foreign secretary of India.
Exclusive! 'What did you achieve by making an example out of Devyani?'
Let's talk a bit about minimum and overtime wages, since that is a topic so dear to everyone's heart. After all, critics say that heartless Devyani paid poor Sangeeta neither the minimum wages nor overtime wages and since "in this country we don't do it this way", she deserves to go to jail.'
'But the FLSA itself makes several occupations exempt from either payment of minimum wages or from overtime wages or both.'
'Disabled people need not be paid minimum wages under FLSA. Seamen on American vessels have to be paid minimum wages, but seamen on other than American vessels need not be.'
'So how fair is the Fair Labor Standards Act,' asks Sharmista Khobragade, Indian diplomat Devyani Khobragade's sister.
Ever since the US Department of Justice arrested Devyani on criminal complaints of visa fraud and false statements there has been much sound and fury. It has finally signified nothing as it has not resulted in the outcome that Devyani's wellwishers want, which is the dropping of false charges against her.
Since December 12, 2013, those of us who have tried to understand what is really going on and why the US is behaving as it is (as opposed to jumping to conclusions, making snap judgments and ranting about unrelated issues) have studied and learnt about many new things: The distinction between diplomatic immunity and consular immunity, definitions of strip search and cavity search, the Vienna Convention, DS-160, Wilberforce Act 2008 and FLSA.
FLSA or Fair Labor Standards Act has intrigued me a fair bit as this act is the psychological underpinning for the moral high ground taken by the American public. 'In this country we pay fair wages,' I can almost hear the smug statement made by the Americans. You actually hear the first part of that sentence very often in America -- 'In this country'; 'We don't do this in this country', or 'In this country we do it this way'. So I am interested in knowing if and how you pay fair wages 'in this country'.
Those who have bothered to read the 11-page complaint which was unsealed in a Manhattan court on December 12, 2013, would know that this complaint talks of a 'first' employment contract between Devyani and Sangeeta Richard. The terms and conditions of this 'first' contract draw from the FLSA.
According to the complaint, Devyani signed this 'first' contract only to help Sangeeta obtain an A3 visa so that Sangeeta could go to work for her in New York, but did not intend to honour it.
This, according to US laws, constitutes visa fraud.
The complaint goes on to state that Devyani instructed Sangeeta to repeat the terms of the 'first' contract (specifically related to salary) at her visa interview which led the US consular staff to approve her A3 visa.
This, according to the US laws, constitutes making a false statement.
Obviously, the employment contract is at the crux of the matter. What makes the employment contract so sacred to the US is that it contains in its terms what the FLSA says all employment contracts must: Minimum wages, overtime pay and record keeping, among other safeguards for employees.
So 'in this country', meaning the United States, an employer is supposed to pay minimum wages, supposed to pay overtime wages for any working hours over 40 per week and supposed to keep records on the hours worked and provide various other safeguards to protect the employee's interest.
And, of course, all employers in the United States pay minimum wages, pay overtime wages for any hours worked in excess of 40, keep records of the wages paid and hours worked, because 'that's how we do it in this country', right?
So why, in a 2013 study report tracking trends in civil settlements arising out of 'wage and hours cases' (where current and/or former employees allege unpaid work, including unpaid overtime, failure to provide rest breaks, and off-the-clock work as Sangeeta Richard has alleged), was it found that US employers paid $467 million in settlement in 2012 alone? And have paid a total of USD 2.7 billion in the period 2006-2012?
The above data refers only to situations where employees filed a civil law suit against the employer.
In the same period, the US department of labor reported 150,000 investigations, of which approximately 75 per cent resulted in a determination of a violation. And some of these employers paid a total of $1.63 billion in back wages and penalties.
These don't sound like a teeny, tiny number, do they?
Let us talk a bit about minimum and overtime wages, since that is a topic so dear to everyone's heart. After all, critics say that heartless Devyani paid poor Sangeeta neither the minimum wages nor overtime wages and since 'in this country we don't do it this way', she deserves to go to jail.
But the FLSA itself makes several occupations exempt from either payment of minimum wages or from overtime wages or both. See table below:
Exempt from Minimum wages
Exempt from Overtime wages
Babysitters on a casual basis
Babysitters on a casual basis
Companions for the elderly*
Companions for the elderly*
Federal criminal investigators
Federal criminal investigators
Home workers making wreaths
Home workers making wreaths
Newspaper delivery
Newspaper delivery
Newspaper employees of limited circulation newspapers
Newspaper employees of limited circulation newspapers
Seamen on other than American vessels
Seamen on other than American vessels
Switchboard operators
Switchboard operators
Workers with disabilities
Boat salespeople
Fishing
Buyers of agricultral products
Seamen on American vessels
Country elevator workers (rural)
Domestic employees who live-in
Farm implement salespeople
Firefighters working in small (less than 5 firefighters) public fire departments
Forestry employees of small (less than 9 employees) firms
Fruit & vegetable transportation employees
House parents in non-profit educational institutions
Livestock auction workers
Local delivery drivers and driver's helpers
Lumber operations employees of small (less than 9 employees) firms
Motion picture theater employees
Police officers working in small (less than 5 officers) public police departments
Radio station employees in small markets
Railroad employe
Sugar processing employees
Taxicab drivers
Television station employees in small markets
Truck and trailer salespeople
(Source: US department of labor Web site)
*As per a ruling by the DOL in September 2013, companions for elderly (a decent sized work force of nearly two million) will be entitled to minimum wages and overtime rates from 1 January 2015 (after a nice long window period).
It looks like a lot of people are actually not even legally entitled to minimum and/or overtime wages under the FLSA, are they?
Did you notice that disabled people need not be paid minimum wages under FLSA?
Or that seamen on American vessels have to be paid minimum wages but seamen on other than American vessels need not be?
So how fair is the Fair Labor Standards Act?
How strong is the underpinning of the high moral ground taken by the Americans? Is the pot calling the kettle black?
This is my question to the US department of In-justice: What did you hope to achieve by making an example out of Devyani?
Is your own track record in paying fair wages by your own citizens to your own citizens or to the countless illegal immigrants they employ so squeaky clean?
How about putting your own house in order before peeking inside the doors of foreign missions?
Words fail me at the hypocrisy. I can only come back to the same words I used on my Facebook post on Friday, December 13 when news of Devyani's arrest first broke out.
'Shame on the United States. Shame on the US government who thinks it is the lord and master of the universe and the "greatest nation on earth" -- one before which all others must prostrate so that it can walk all over them.'
